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Chapter 1 introdution to interpretation of statutes


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Chap. 01 Introduction to Interpretation of Statutes (LL.B. III)

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Chapter 1 introdution to interpretation of statutes

  1. 1. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 1 INTERPRETATION OF STATUTES STUDY NOTES Asmatullah Kakar (Asst. Professor, University Law Colelge, Quetta) CHAPTER # 01: INTRODUCTION TO INTERPRETATION OF STATUTES INTRODUCTION: Theory of Separation of Power presented by Montesquieu, led the power to be expressed in three organs of the State, namely, legislature, judiciary and executive. Legislature is entitled to make the laws for the society, judiciary is concerned with application of these laws on real cases, while executive will enforce these rules in the society. Here the job of Judiciary or Courts is to apply the rules made by legislature to an issue or conflict. It is the process whereby the Courts determine the true meanings of the words employed in a Statute. MEANING OF INTERPRETATION: The term interpretation is derived from Latin term interpretari which means to explain, to expound, to understand or to translate . Hence, it is a process whereby a text (anything in written form giving an idea) is to be explain, expounded, understood or translated. TYPES OF INTERPRETATION: As we know that Texts are of different nature e.g. religious texts, philosophical texts, literary texts, historical texts and statutory texts, therefore, there exist different types of skills which help in understanding the texts of these different nature. Following are some of the commonly known types of interpretation, namely: 1. Hermeneutics: It is the theory of how to interpret religious, philosophical and literary texts. This science is theoretical. In other words, it is merely dealing with different approaches to the question that how to interpret a text. 2. Exegesis: Exegesis deals with the aspect of practically interpreting a biblical text while applying a particular approach or theory of interpretation explored by hermeneutics. 3. Eisegesis: It is considered as a negative approach to interpretation. It is that type of interpretation where the interpreter mixes his own idea, presupposition, idea, biases, design or agenda in interpreting a particular texts. 4. Tafsir The Exegetical Science of Quran: The word Tafir is derived from the root word f-s-r which means opening or unveiling .
  2. 2. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 2 It may be defined as, the science which expounds the pronunciation, meaning and connotation of the individual words and the specific meaning and connotation of these words in the accordance with the text and context of the Quran . The texts of Quran may be interpreted in accordance with Shan-e-Nazul (The circumstance under which that particular verse was revealed), therefore, the hermeneutics of Quran suggests Contextual Approach. However, while remaining within the boundaries of Contextual Approach, there are two other approaches developed in connection to interpretation of Holy Quran. Analytic Approach: This approach suggests the interpretation of Quran, verse by verse, however, every verse it the context of its own Shan-e-Nazul. Thematic Approach: This approach suggests that while interpreting the Holy Quran, the exegete shall take a group of verses relating to a particular theme. 5. Statutory Interpretation: Salmond: Interpretation is the process by which the Court seeks to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed. In other words, it is the process whereby the Courts determines the meanings of words and phrases employed in a statute in accordance with the intention of the legislature. All the statutes are composed of words, phrases and grammatical indications. Justice Zahid Hussan held in Ghulam Muhammad Lali v. Imtiaz Ahmed Lali (PLD 2006 Lah. 661) that: No word in the statute is to be rendered nugatory, meaningless or otiose and full effect is to be given to the intention of the legislature expressed through the words employed by it Whereas, words are not capable all the times to convey the idea in an unambiguous and exact way (owing to the problems of ambiguity, vagueness etc.) Therefore, the Courts are required to assign meanings to all the words and phrases used in a statute in accordance with the intention of the legislature or in other words to interpret the statutes.
  3. 3. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 3 NEEDS OF INTERPRETING STATUTES: I. Language Problems: Language is considered as the most important invention of human beings but as a matter of fact it is the most unsuccessful medium of communication, as it is full of ambiguities, vagueness, incorrectness and impreciseness. As all the statutes are drawn up in form of language, therefore, these problems are inherent in statutes as well, which will give rise to uncertainty and inexactness, hence, there will always be a need of interpreting statutes so that their correct meanings may be ascertained as was intended by the legislature. Following are the common language problems that making language obscure. 1. Problem of Indirect Communication: Language may either be speech or written language. However, in case of speech language, the uncertainty may be resolved at the spot through Socratic Method. Whereas, the written language (which is an indirect means of communication) offers finality as there would be no opportunity of asking its author for clearing the idea he has presented in his text (written language). As the statutes are drawn up in written language there is always a necessity of interpreting them. 2. Ambiguity: Every language is full of ambiguities. The term ambiguity is having its origin in the old French word ambiguite and Latin word ambiguitas derived from another Latin word ambiguus which means doubtful . Online Oxford Dictionary defines ambiguity as, the quality of being open to more than one interpretations or inexactness . It means a word or phrase which is fairly and equally open to diverse meanings. In other words the ambiguous term or phrase is capable of either giving several meanings or being understood in more than one senses. FOR EXAMPLE: Consider the following sentences 1. I will meet you at the bank. 2. The Bill was killed in the house. In the first sentence the word bank is ambiguous because it may mean commercial bank or sea bank . Hence, the hearer or reader may be confused as to where the meeting will be held. Whereas, in the second sentence the words bill , killed and house are all ambiguous. Bill is the name of a bird or of a person. It also means a draft document introduced in the parliament to be passed as a law. The word killed may either mean the act of murdering a person or destruction of something. Further, the word house may either
  4. 4. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 4 mean the place of dwelling or the place where the legislators (Parliamentarians) are assembled. Now, therefore, the sentence may be open to the following multiple meanings: 1. The bill (bird) was murdered in the house (home) 2. The bill (bird) was murdered in the house (Parliamentary house) 3. The bill (a man) was murdered in the house (home) 4. The bill (a man) was murdered in the house (Parliamentary house) 5. The bill (a document) was destroyed in the house (someone s home) 6. The bill (a document) was destroyed in the house (Parliamentary house) Hence, both of the above sentences are ambiguous as both of them are open to more than one meanings. Kinds of Ambiguity: There are following kinds of ambiguity: A. Lexical or Semantic Ambiguity: The ambiguity caused by multiple lexical meanings of a word or phrase. In other words, that ambiguity which occurs whenever a word has more than one dictionary meanings. Types of Lexical Ambiguity: Lexical ambiguity is further of following two types: 1. Lexical Ambiguity in Meaning: A word is lexically ambiguous in meaning if it is having multiple dictionary meanings. 2. Lexical Ambiguity in Sense: A word is lexically ambiguous in sense if it can be used in more than one sense. Case Study: Frigaliment Importing Co. v. B.N.S. International Sales Corporation 190 F. Supp. 116 (S.D.N.Y. (1960) Brief Facts: The buyer, a Swiss Frigaliment Importing Company has ordered for frozen eviscerated chickens from a US wholesaler poultry B.N.S. International Sales Corporation. (Eviscerated Chicken means a chicken whose interiors have been removed). The order includes two sizes of chicken namely (a). 11/2 2 Pounds, and (b). 21/2 3 Pounds When the shipment arrived Europe, the buyer found that the heavier chickens (21/2 3 Pounds) were all stewing chickens (the older chickens usually laying eggs). Whereas, he was expecting both the sizes as either broiler or fryer (young chickens). Therefore, the buyer brought suit for infringement of contract against the seller. Issue: Does the term chicken in the contract mean only younger chicken?
  5. 5. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 5 Plaintiff s Arguments: That the first size (11/2 2 Pounds) was naturally younger chickens because older chickens do not come in that size. Because the smaller chickens had to be younger chickens, Plaintiff argues that the larger chickens (21/2 3 Pounds) also had to be young. Plaintiff also argues that trade usage of the term chicken is to indicate a young chicken. However, there was conflicting evidence as to whether chicken only means a young chicken in the trade. Defendant s Arguments: That the contract has specified the chickens in terms of weight but not age, therefore, as the order was complied with the specified weights, the contract has been satisfactorily performed. Defendant alleges that to sell younger chicken to Plaintiff at the contract price would result in a loss to the Defendant. The Court s Decision: Judge Friendly, who heard the case, has accepted that the term chicken alone is ambiguous , hence, both the meanings are possible. It was so because there were multiple meanings of the term chicken in dictionary that also includes the above said two meanings i.e. younger and older chickens. However, taking into consideration, the other factors along with the provisions of the contract, he finally decided the case against the plaintiff. Discussion: In this case the term chicken was ambiguous. There was multiple meanings of the term chicken in dictionary which was also including both younger and older chickens. Therefore, the question was that what meaning of chicken was intended by both the parties while entering into the contract. Moreover, as the word chicken was ambiguous because of it being open to more than one dictionary meaning, hence, it was a case of lexical or semantic ambiguity. B. Syntactical or Grammatical or Structural Ambiguity: The ambiguity which occurs due to the grammatical structure of the sentence is called syntactical, grammatical or structural ambiguity. In other words, sometimes a sentence or paragraph may be ambiguous not because of the multiple meanings of the words but because grammatical order or the sentence or paragraph.
  6. 6. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 6 Examples: Consider the following sentence: The skinny (thin) General s daughter got 1st position in LL.B. Here the adjective skinny can modify either nouns (General and Daughter) and the sentence may be open to following two meanings. 1. The daughter of the skinny General got 1st position in LL.B., or 2. The General s skinny daughter got 1st position in LL.B. Following is another example: John asked Bill to leave on Wednesday. This sentence is also open to following two connotations: 1. Did John asked that Bill shall leave on Wednesday? Or 2. Did John asked on Wednesday that Bill shall leave? C. Referential Ambiguity: When a word (particularly proper noun) is ambiguous due to certain external facts, the ambiguity is known as referential ambiguity. In other words, when a noun is referring a particular object and it happens that certain other object is also referred by the same word, this ambiguity is called referential ambiguity. It is also known as referential indeterminacy. Dictionaries are not giving the meaning of proper nouns. However, good dictionaries may give an account of a particular proper noun, e.g. Istanbul, but this is merely an account as to its geographical and other information and not definition of the word Istanbul. Examples: For example, the noun Paris shows referential indeterminacy, because it is the name of the capital city of France and also of a small city situated in Texas. Case Study: Raffles v Wichelhaus (1864) 2 H & C 906 Court of Exchequer Brief Facts: Raffles (Plaintiff) contracted to sell 125 bales of Surat cotton to Wichelhaus (Defendant). The goods were to be shipped from Bombay to Liverpool, England on the ship Peerless . Neither party was aware that there were two ships names Peerless carrying cotton from Bombay to Liverpool, one arriving in October and the other in December. Wichelhaus thought he had purchased the cotton arriving on the October ship, but Raffles sent his cotton on December ship.
  7. 7. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 7 Wichelhaus refused to accept delivery of the cotton arriving on the December ship and Raffles brought this lawsuit for breach of contract. Issue If a latent ambiguity arises that shows that there had been no meeting of the minds, have the parties given mutual assent to contract? Latent Ambiguity: It means an uncertainty not involved in words themselves but arising from outside matters. OR an uncertainty which does not appear upon the face of a legal instrument but arises from evidences produced Court s Decision: The Court found that there existed a latent ambiguity in the contract due to the mistake of the parties as to the proper noun of the ship Peerless . One party was knowing Peerless leaving in October while other was aware with Peerless leaving in December. As there was not meeting of the minds between the parties, therefore, the contract is void for want of assent. Discussion: In this case there was no ambiguity in the meanings of the words employed but the fact of existing two ships with the same proper noun of Peerless has made the contract ambiguous. 3. Vagueness: According to Oxford English Dictionary, Vague means not precise or exact in meaning. German Prof. Ralf Poscher defines it as: An expression is vague if it has borderline cases. The cases in which one just does not know whether to apply the expression or withhold it, are borderline cases. The borderline cases create confusion and uncertainty as to the exact meaning of a word or phrase. Thus, vagueness occurs when though a word or phrase may be having a single unambiguous meaning but is not giving an exact and precise idea. For example, the words poor, rich, hot heavy, tall, short, big, brave, sufficient, enough, ugly, handsome, beautiful, etc. are all vague terms. Example: If someone says Adil is a rich man . We can understand that Adil is having enormous wealth. But the word rich is not giving an exact account of Adil s fortunes. Hence, it is vague.
  8. 8. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 8 Here the question would be that how much wealth can make a person rich? There may be certain persons who are absolutely rich like Bill Gates, and yet there may be other persons who are absolutely poor like a slum dog. However, there are certain persons who are ling between the two extremes. In other words, these persons are lying at the borderline of the rich and not rich persons. Therefore, there would be uncertainty that whether these persons shall be called rich or not. Statutory Example: ( Sufficient Cause used in Section 5 of Limitation Act, 1908) Section 5 of Limitation Act, 1908 provides for condonation of delay for filling of appeal or application for revision or review of judgment or leave to appeal. Whereas, this delay can only be enjoyed if the sufficient cause is to be shown. PLD 1968 Lah. 923, defines a sufficient cause as being something beyond the control of the party. However, the question may arise that what things are beyond the control of the party and what are not? Hence, there would be certain causes which would absolutely be beyond the control of the party like, being out of country or being in jail , and there would also be certain grounds which would absolutely not be beyond the control of the party, e.g. being busy in exam or being busy in marriage. However, there may be certain grey area or borderline cases where it would not be clear whether these causes are being beyond or not of the control of the party . To understand this concept let us consider the following case study. Case Study I: (Muhahid Shah and another v. Suhail Ikram et al.; PLD 2006 Lah. 26) Brief Facts: Suhail Ikram et al. filled a suit against Mujahid Shah and another for recovery of R 2 crore in the Court of Senior Civil Judge Attock. The case was decreed against defendants/Appellants on 04.09.2004 to the tune of Rs. 5,00,000. Muhaid Shah and other (Appellants/Defendants) filed an appeal against the judgment in the District Court of Attock on 01.11.2004. However, the appeal was returned to the appellants on 07.04.2005, for its presentation before appropriate forum, on the ground that the appeal against Court of Civil Judge could only lie before the District Court if the valuation of the Suit does not exceed Rs. 25,00,000, in which case the appeal shall lie before the High Court. Consequently, the Appellants/Defendants have filed the appeal in Lahore High Court on 04.07.2005, along with an application seeking condonation of delay under Section 5 of Limitation Act, 1908.
  9. 9. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 9 Condonation was sought on the ground of pursuing the appeal in wrong forum under Section 14 of Limitation Act, which is basically a ground for condoning delay in filing of a suit. Issue: 1. Whether time consumed in District Court of Attock could be excluded from the period of Limitation?1 Appellants Plea: That the Appeal was preferred in the Court of District Judge, Attock, on the wrong advice of their Advocate. That the advocate misconstrued the law and keeping view the decretal amount of Rs. 5,000,00, hence they may not be prejudiced by the act of their Advocate. That, therefore, institution of the appeal before wrong forum constitutes sufficient cause within the meaning of Section 5 and 14. Findings of the Court: In Karamatullah (1999 SCMR 1892), the principle was established that if delay seems to be condonable on the ground of the time consumed in the wrong forum the same may be condoned. (i.e. the appeal pursuing in wrong forum may be a sufficient cause). However, Section 14 requires that time consumed in wrong forum may only be excluded from limitation period if it was in good faith . Moreover, beyond control is also suggesting situations in good faith . The court further relied on the following principle established in Ghulam Ali Case (PLD 1991 SC 957): That the mistake of the council could not be treated an act done in good faith as the same was not done with due care and caution and would not amount to sufficient cause, as contemplated by Section 5. Hence, the Court rejected the appeal by establishing that pursuing appeal in wrong forum could not amount to sufficient cause . Discussion: The phrase sufficient cause is a vague term. In the instant case the question was that whether pursuing appeal in a wrong forum amounts to sufficient cause or not. In Ikramatullah case, it was determined that this ground may be categorized in sufficient cause . It then gave rise to another vague situation, that whether 1 The Limitation period for filling an appeal to a High Court is 90 days except in cases provided for by Section 151 and 153 of CPC. (See First Schedule, Second Division Appeals, Entry No. 156). As the case was decreed on 04.09.2004, and the appeal filled on 04.07.2005, it is clearly out of the required time period i.e. 90 days.
  10. 10. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 10 pursuing appeal in the wrong forum due to mistake of the council amount to sufficient cause . To find this answer the court diverted its attention to the nature of the mistake and determined that it was due to the carelessness and negligence of the council, hence, it may not be bona fide (in good faith), therefore, the Court ruled that this cannot become a sufficient cause . Case Study II: [Interstate Commerce Commission v. Allen E. Kroblin, Inc. 113 F Supp. 599 (N.D. lowa, E.D. 1953)] Background: The Interstate Commerce Commission (ICC) was established by Interstate Commerce Commission Act, 1887. Moreover, it was further made necessary by this Act that all the carriers and trucks which shall carry commodities (manufactured) from one US State to other, shall obtain a certificate from ICC in this regard. However, it exempted from registration any carrier that would carry certain agricultural products such as fruits, vegetables, livestock etc. The Act did not define the terms manufactured and agricultural products . However, the word manufactured had been defined in dictionaries and different cases to which both the parties had no objection. In American Fruit Growers, Inc v. Brogdex Co., 1931, it was defined as: Manufacture, as well defined by the Century Dictionary, is the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labour or machinery But there was no dictionary which had ever stated that eviscerated chicken is belonging either to manufacture or agricultural product. Brief Facts: Allen E. Kroblin Incorporation was engaged in interstate transport of eviscerated chickens. It has not obtained any certificate from ICC for such transportation. ICC has brought a case against the Allen E. Kroblin Inc. and claimed that it is engaged in unlawful interstate transportation. Issue: The question before the Court was whether eviscerated chicken falls in the definition of manufactured product or not. ICC Stance: ICC maintained that eviscerated chickens are manufactured products , as the slaughtering, removing of interiors, making pieces of flesh and packing of chickens requires both man labor and machinery, therefore, they qualify the definition of manufactured.
  11. 11. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 11 As these are manufactured products , therefore, they should be transported from state to state in vehicles having certificates from ICC. The trucks of Kroblin Inc. do not have the said certificate, therefore, they are in violation of the law. The Stance of Kroblin Inc. and the Department of Agriculture: The eviscerated chickens are to be classified as an agricultural commodity and not a manufactured product . No doubt that live chickens are agricultural products. However, eviscerated chickens are also agricultural products, and mere processing of an agricultural product cannot result in manufactured product. It can only be changed into manufactured product if its processing converts it into an entirely new and distinctive commodity. Whereas, in case of eviscerated chickens, the process (man labour and application of machinery) has not changed it into entirely new and distinctive product, hence, they cannot be categorized in the definition of manufactured products . Therefore, they can be transported from state to state by uncertificated trucks, because an Act of Congress had exempted agricultural commodities from the requirement of ICC certification. The relevant part of the Act, Section 203(b)(6), may be reproduced as under: motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural (including horticultural) commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation. Court s Findings: The Court, after analyzing the law and facts of the case, found that there was no help to the Court to reach upon a decision except to look into the purpose for which the exemption was enacted in favour of carriers transporting agricultural products from licensing from ICC. Therefore, after scrutinizing the legislative history, the Court reached the decisions that it was the intent on the part of Congress that the words manufactured products are not to be given the restricted meaning contended for by the ICC herein. Hence, the Court ruled that eviscerated chicken is not a manufactured product and any carrier engaged in interstate transportation of these chickens are entitled to the exemption from obtaining certificate from ICC.
  12. 12. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 12 Discussion: In this case the words manufactured products were vague to the extent that which products shall be categorized and which shall not be as manufactured products. There were certain products which were absolutely manufactured, like computers, mobile phones, cars etc., and there were also certain products which were absolutely not manufactured e.g. fruits, livestock and fishes. Yet there exist borderline cases, in the since, whether certain products be categorized as manufactured or not. One of these borderline cases was the eviscerate chicken in the forgoing case. Hence, it may be concluded that a vague term or phrase is that which though may give a single dictionary meaning but gives rise to a borderline case. Now, as the language is also full with vague terms, therefore, the Courts are needed to interpret the same as to determine the real meaning of the legislation. 4. Technicality of Legal Language: Legal language is by nature highly complex, comprehensive and therefore, technical. It would not easy to understand it with ease. A joke against lawyers is famous, that the moment you cannot understand something, you can almost be sure that it was drawn up by a lawyer. Legal language is technical because law is meant to be clear and unambiguous and state the whole matter comprehensively as to avoid any uncertainty in future. Therefore, the struggle of making the language of law less ambiguous, can make it technical and difficult to understand which will ultimately require the Courts to interpret the same so as to determine the true meanings of the words used in the legislation. 5. Presumptive Legal Behavior v. Real Factual Behavior The Courts are also needed to interpret the Statutes because, Statutes are being drawn up in a way to avoid or permit a particular presumed type of future action, whereas, Courts are concerned with real factual case, which sometimes may and sometimes may not be covered by the express language of Statutes. To understand it let us take an example. Suppose you purchase a ready-made garments from a shop. All the ready-made garments are being prepared on certain standard sizes. Therefore, the closest size of such garments may not be fitted on you exactly. Hence, you may take it to a tailor for slight alteration, so that these may come fit on you. Same is the case with statutory law. Statutes are providing standard behavior. However, these standards may not cover every real case expressly. Therefore, while applying these statutes to real facts, the Courts may be needed to interpret it.
  13. 13. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 13 6. Hasty Legislation The legislature may face certain urgent situations for which former legislation may not exist. Hence, to cope with the urgency of the situation, parliament may legislate in an hasty way which may logically bring obvious uncertainty in Statutes. tatTherefore, the Courts may be needed to interpret the Statutes so as to determine the meanings of such Statutes in accordance with the intention of the legislature. 7. Clerical Mistakes While drafting a Statute passed by the Parliament, the chance of clerical mistakes may not avoided. Hence, if such is the situation then the Courts will interpret the concerned Statute and remove such mistakes. INTERPRETATION AND CONSTRUCTION Though the two terms interpretation and construction are commonly beings used as synonyms, however, there is a slight different between them as under: 1. Interpretation: Interpretation is the process of discovering the true meaning of the language used in a statute. Interpretation is only limited to explore the written text or to discern the meanings of the words through dictionaries and other sources. 2. Construction: Whereas, construction is the drawing of conclusions with respect to subjects that are beyond the direct expression of the text. In other words, when after determining the meanings of the words used in a statute through interpretation process, the Court then draw certain conclusions from them. And construction is the application of these conclusions on a particular set of facts pending before the Court. Example: To understand the difference between interpretation and construction let us consider the following example: Let suppose, a statute is prohibiting the entrance of certain people in the VICINITY OF A BUILDING . B while flying in a parachute lands on the top floor of the building. Has he committed a wrong? In such a situation, first of all the Court shall determine the meaning of the word Vicinity through dictionaries, which may be neighborhood, area, locality etc. The word vicinity, as obvious, is both ambiguous and vague, hence, the Court then has to determine the intention of the legislature. Let suppose the building is of very sensitive nature accommodating secrecies of the State. Therefore, in such a situation the Court can logically come up with the conclusion that by vicinity the legislature intended to mean all the surrounding areas of the building (land,
  14. 14. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 14 underground or air). This process of discerning meaning of the word vicinity is called interpretation. The next step is to apply these conclusions on the fact of B landing on the top floor of the said building through parachute and determine whether B has committed a wrong or not. Let suppose, B s landing on the building was only for a short moment and the same was due to the technical fault in his parachute. Moreover, considering his stay at the building if it seems impossible for obtaining any of the secret information, then the Court may exclude his action from the preview of the said statute and declare that his action was not covered by it. This process of applying the conclusions drawn in interpretation process on a set of facts, is called construction. OBJECTS OF INTERPRETATION There are following two fold objects of interpretation: 1. Determination of Meanings: 3. As it has already been stated that statutes are composed of language and language is consisting on words and phrases. Whereas, the words are carrying sometimes multiple meanings and connotations. 4. Therefore, the first task of the Courts is to determine the meanings of different words and phrases used in a statute. 2. Finding the Intention of the Legislature: As we know that legislation is the task of the legislature and the Courts cannot assume that position while interpreting. Hence, while determining the meanings of the words and phrases during interpretation, the Court must find out the intention of the legislature, and in accordance with this intention it shall assign the meaning to the words and phrases used in the Statutes. RESTRICTIONS/LIMITS ON JUDICIAL INTERPRETATION As stated earlier, the sovereign power of a state is divided into three organs, namely, legislature, judiciary and executive. Each organ has its specific task. The task of the legislature is to make laws, the function of the judiciary is to interpret and apply the laws and work of the executive is to enforce those laws. The smooth running of the state affairs can only be ensured, if all these three organs functions in their respective circles and refrain from reproaching the functions of others. To this end, it is important that while interpreting statues, Courts must not assume the position of legislature which may give rise to judicial activism. Therefore, to avoid the evils of judicial activism there are following limitations on Courts in interpreting statutes.
  15. 15. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 15 1. Interpret not Legislate: While interpreting statutes, the only duty of the Court is to determine the literal meaning of the words and phrases used in a statute, if the meanings of the words are clear and unambiguous. In such a case, the only task of the Court shall be to give effect to these natural/dictionary meanings to the words or phrases. To go beyond those natural meanings and assign specialized meanings to the words and phrases, would imply that the Court has overtaken the power of the legislature and has laid down something very different from what the legislature enacted. Therefore, the Court should be limited to interpret but not legislate. 2. Discover not Invent: Whereas, if there exists an ambiguity, vagueness or uncertainty in the meaning of a word or phrase, then the Courts can go beyond the natural/dictionary meaning of that word or phrase and can assign any other specialized meaning. However, in such cases too the Court is not free to assign whatever meaning it pleases. In case of ambiguity and vagueness, the Court, while assigning meanings to the words and phrases, has to discover the intention of the legislature first. In so determining the intention of the legislature, the Court must not arbitrary by saying that the legislature would have meant , rather it should take into consideration certain sources for opening the minds of the legislature. In other words, in such a situation, the Court shall determine the intention of the legislature by analyzing the mischief the sought to cure, the legislative history of the statute, the parliamentary debates etc. 3. Remove not Add: If, however, there happens any lacuna in the statute then the job of the Court would be remove the same so that the statute may be become operative. But in doing so, the Court cannot go further and add certain things which have not been conceived by the parliament. SUBJECTS OF INTERPRETATION Simply saying any Act or document may be interpreted by Court, which is validly creating rights, duties and relationships among individuals or individuals and State. Following are the most commons subjects of interpretation by Court: Constitution Legislation including Statutes, Ordinances, Orders or Subordinate Legislation Agreements Any kind of agreement if enforceable under law Other Instruments Wills, Gift Instruments, Wakf Instruments, Trusts Instruments, Dying Declarations etc.
  16. 16. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 16 SOURCES OF INTERPRETATION IN PAKISTAN Interpretation is a process and must be regulated by certain rules and principles. In Pakistan, while interpreting statutes, the Courts must take help of the following sources: 1. Interpretive Clause: Almost in all statutes there is a Definition/Interpretive Clause which is defining the terms and phrases used in that Statute. Therefore, the first source of interpretation for the Court is to sort out the meanings of the words and phrases in accordance with the interpretive clause of the concerned Statute. 2. General Clauses Act, 1887: In Pakistan the Interpretation Act is General Clauses Act, 1887 which is defining a list of words and phrases commonly known to Pakistan Legal System. Moreover, it also providing certain principles of interpretation in certain situations. Therefore, the next source of interpretation for Courts in Pakistan is this Act. 3. Rules and Principles of Interpretation: Beside these sources, there are certain rules and principles of interpretation developed (both through case laws and academic scholarship) in Pakistan and also under other civilized legal systems of the world. Hence, while interpreting a statute the Court must bear in mind these rules and principles of interpretation.
  17. 17. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 17 EXERCISES I. SUBJECTIVE QUESTIONS: A. Textual Questions Question 1: What is interpretation ? Give its literal meaning and define it. Also state the objects of Interpretation of Statutes. Question 2: Briefly discuss various types of interpretations and explain in detail Statutory Interpretation? Question 3: What is interpretation and construction ? Distinguish between them by the help of an example. Question 4: Write a comprehensive note on the needs of Statutory Interpretation? Question 5: Language is an obscure means of communication . Justify the statement by stating the problems existing in understanding written language. Question 6: What is ambiguity? Also explain various types of ambiguities with special reference to case laws. Question 7: Explain in detail the concept of vagueness. Illustrate it with the help of case laws. OR What do you know by the concept of borderline cases ? Explain with the help of decided cases. Question 8: Do you agree that legal language is more technical? Advance reasons in support of your answer. Question 9: What are the restrictions/limitations on statutory interpretation? Explain Question 10: What are the subjects of Judicial Interpretation? Also state the sources of Statutory Interpretation in Pakistan. Question 11: Write a detailed not on Frigaliment Case. Question 12: Discuss the principles established in ICC (Interstate Commerce Commission) Case. Question 13: Briefly examine the case of Muhahid Shah and another v. Suhail Ikram et al. Question 14: Give a brief account as to Raffles v. Wichelhaus (Pearless Case). B. Conceptual Questions Question 1: Suppose A (a Quetta Client) and B (a Lahore wholesale Laptops dealer) enter into an agreement for sale of 300 Laptops. The agreement provides for the sending of Laptops through Insaaf Goods Transport Company and payment of the transport expenses by A on receipt of the goods in Quetta. . Suppose, there are two companies by the same name dealing in sending goods but one through trucks and the other through airlines. A was only aware of the company which was sending the goods through road trucks, whereas, B (being aware of both the companies) decides to send the goods through airlines owing to the urgent demand of A . On reaching
  18. 18. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 18 the goods in Quetta, A refused to pay for the high expenses of the airline, claiming that he did not intend the goods to be sent through airlines. B sues A in the Civil Court of Quetta for infringement of contract. If you are the Judge, what would be your decision? Explain it in accordance with the process of interpretation and construction. Question 2: Suppose an Anti-Narcotics Act prohibits the selling of any liquor which contains intoxication. The Anti-Narcotics Department prosecutes X , a tea dealer, who has been claimed of selling a new brand tea (leaves) which has been shown by scientific research as being intoxicated. If you are the Anti-Narcotics Judge, what would be the words or phrases that would be ambiguous or vague? If the facts are not disputed would you convict X or release him from the charges? Give your reasons. Question 3: M enters into an agreement with Y an insurance company, for insurance of his car. One of the terms of the contract provides for replacement of the car by the company if it gets damaged or destroyed in any accident beyond the control of the party. M parks his car as usual in a parking area near to his office, around which is situated an old tall building of which a newspaper has already informed it being in a state of collapsing down any moment. At that very day the building collapsed down while destroying the car of M . M seeks replacement of the car by the company in accordance with the provisions of the contract. 1. If you are the council for M what would be grounds available to you for getting remedy for your client. Discuss by referring to ambiguous and vague terms particularly. 2. If you are the judge, explain the process of interpretation and construction you may put while arriving at your decision.
  19. 19. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 19 II. OBJECTIVE QUESTIONS A. Multiple Choice Questions: Choose the correct choice. 1. The theory of Separation of Powers was presented by _________. (a). Hobbes (b). Jeremy Bentham (c). Kant (d). Montesquieu (e). None of above 2. Interpretation is derived from a Latin term interpretari which means ______. (a). to convert (b). to inhale (c). to expound (d). to absorb (e). None of above 3. Hermeneutics is the theory of interpreting _______, literary and philosophical texts. (a). religious (b). Greek (c). Arabic (d). Roman (e). None of above 4. The science of practical aspect of interpreting a biblical text is known as _______. (a). Hermeneutics (b). Exegesis (c). Eisegesis (d). both a and b (e). None of above 5. ________ is considered as a negative approach to interpretation. (a). Hermeneutics (b). Exegesis (c). Eisegesis (d). both a and b (e). None of above 6. The type of interpretation in which the interpreter mixes his own idea, presupposition, biases, design or agenda, is called _________. (a). Hermeneutics (b). Exegesis (c). Eisegesis (d). both a and b (e). None of above 7. The word Tafsir is derived from the root word f-s-r which means ____ or _____. (a). reading/explaining (b). looking/searching (c). finding/absorbing (d). opening/unveiling (e). None of above 8. Shan-e-Nazul of the Quran means the _______ under which a particular verse was revealed. (a). age (b). circumstances (c). method (d). All of above (e). None of above 9. The hermeneutics of the Quran suggests _______ approach. (a). Literal (b). Textual (c). Contextual (d). both a and b (e). None of above 10. Salmond defines interpretation as the process by which the Court seeks to ascertain the meaning of the legislature through the medium of __________ forms in which it is expressed. (a). authoritative (b). absolute (c). judicial (d). mechanical (e). None of above 11. The term ambiguity is having its origin in the old French word _______ and Latin word _________ derived from another Latin word ambiguus which means doubtful. (a). Ambigui/mabiguity (b). Ambgare/Mombigous (c). ambity/ambigus (d). ambiguite/ambiguitas (e). None of above 12. Ambiguity literally means _________. (a). productive (b). wide (c). mixture (d). doubtful (e). None of above 13. Ambiguity means a word or phrase which is equally and fairly open to __________ meanings. (a). no (b). new (c). modified (d). diverse (e). None of above 14. Bank and Bill are _______ terms. (a). vague (b). vague/ambiguous (respectively) (c). ambiguous (d). legal (e). None of above 15. An ambiguity caused by multiple lexical meanings of a word or phrase is called ________ ambiguity. (a). lexical (b). structural (c). grammatical (d). syntactical (e). None of above
  20. 20. © 2015 Asmatullah Kakar (Study Notes: Interpretation of Statutes). All rights reserved. 20 16. The ambiguity which occurs due to the grammatical structure of a sentence, is called _________ ambiguity. (a). semantic (b). lexical (c). syntactical (d). pragmatic (e). None of above 17. Raffles v. Wichelhaus (Pearless Case) was about _______ ambiguity. (a). lexical (b). syntactical (c). grammatical (d). Referential (e). None of above 18. According to Ralf Poscher, a German professor, an expression is vague if it has _______ cases. (a). hard (b). soft (c). borderline (d). both a and b (e). None of above 19. The basic object of interpretation is to __________ but not ________, the intention of the legislature. (a). invent/discover (b). discover/invent (c). modify/limit (d). limit/modify (e). None of above 20. Construction is the drawing of conclusions with respect to subjects that are __________ the direct expression of the text. (a). within (b). beyond (c). in approach of (d). both a and c (e). None of above B. True and False Statements 1. Interpretation is derived from Greek word interpretari . 2. Hermeneutics is the theory dealing with the interpretation of literary, philosophical and religious text 3. Lexical ambiguity occurs due to the structure of the sentence 4. Those words which have borderline cases are called vague words. 5. The real objects of the interpretation of statutes are to expound the meanings of the words and determine the intention of the legislature. THE END [TRUE/FALSE] [TRUE/FALSE] [TRUE/FALSE] [TRUE/FALSE] [TRUE/FALSE]
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